Standing Committee B

[Mrs. Marion Roe in the Chair]

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Clause 15 - Electronic monitoring

Mark Oaten: I beg to move amendment No. 165, in
clause 15, page 16, line 1, after 'comply', insert 'without good reason'.

Marion Roe: With this it will be convenient to discuss the following amendments:
 No. 166, in 
clause 15, page 16, line 3, at end insert— 
 '(2A) Where the reason given for an alleged breach in subsection (2)(b) above is not accepted by the person imposing the restriction— 
 (a) the monitored person shall have seven days to make representations to a Chief Immigration Officer, and 
 (b) the Chief Immigration Officer shall make a decision to continue, vary or revoke requirements including a decision to detain under this section only after having carried out a review and given written reasons for that decision.'.
 No. 169, in 
clause 15, page 16, line 13, at end insert 'necessary and reasonable'.
 No. 172, in 
clause 15, page 16, line 40, leave out 'may' and insert 'shall'.
 No. 173, in 
clause 15, page 17, line 2, leave out 'and'.
 No. 174, in 
clause 15, page 17, line 6, at end insert 
 ', and 
 (c) must not impose a disproportionate restriction on the liberty of the individual.'.

Mark Oaten: I welcome you to this afternoon's sitting, Mrs. Roe. I do not intend to detain the Committee for long on these amendments. They are probing amendments designed to find out the Government's intentions for electronic tagging. In keeping with the spirit of co-operation from the Minister, I accept that I cannot have my cake and eat it.
 If we had had a chance to debate clause 14, I would have pointed out that I prefer the forced removal process to some of the Government's suggestions as laid out in clause 7. I do not have difficulties with the suggestions in clauses 14 and 15. There should be greater use of electronic monitoring, or tagging, in the general criminal justice system as an alternative to sending people to prison. I have no problems with the Government's intentions, but I want to highlight concerns, and I hope that the Minister can provide clarification. 
 I remind the Committee that we are discussing the possibility of tagging—I shall call it that rather than electronic monitoring because it is easier—for people who have not been convicted of a crime. It is important to establish and to recognise that there is a difference between the conventional use of tagging and the forms of tagging being suggested in this case. Will the Minister clarify in what situations the Government would suggest using tagging? For example, how often does she think that tagging will be used for residence restrictions, reporting restrictions, or to enforce conditions of immigration bail? Tagging could be acceptable for use in some scenarios more than others, such as reporting restrictions. 
 Have the Home Office considered alternatives to tagging? For example, voice connection would be a sensible way to achieve the same aim without using tagging. A requirement to phone in using voice recognition technology—a recognised form of technology—might achieve the same aim. Similarly, we could employ the kind of tagging used for home curfews, for example, between 7 pm and 7 am, rather than full conventional tagging. Is the Minister suggesting a move to new forms of technology, such as satellite tagging, which could track down and trace individuals 24 hours a day? 
 As I said, these are probing amendments intended to establish in which categories the use of tagging is envisaged, and to ask whether forms of technology other than full tagging could achieve the same aim. 
 Finally, powers exist under immigration law to allow the Home Secretary to detain individuals if there are extreme concerns. What does the Minister intend to achieve through the powers in clause 15 that could not be achieved through existing powers of detention?

Neil Gerrard: I want to speak briefly on the points raised by the hon. Gentleman and how the powers in the clause may be used.
 The clause uses slightly different phrases on residence and reporting, referring to where 
''a residence restriction is imposed on an adult''
 and where 
''a reporting restriction could be imposed on an adult''.
 The second provision seems wide. When someone is given temporary admission, the IS96 form issued to them will almost always include a requirement for that person to report to an immigration officer at a particular time and place. That is now common. 
 The question is how widely the power will be used and whether the intention is to use it, in some cases at least, as an alternative to detention. The Government's policy in recent years has been to increase the size of the detention estate, with the obvious implication that more people will be in detention, or do the Government envisage the restrictions being used in addition to detention? It will be interesting to hear the Minister's views on the extent to which and the cases in which the power will be used and the relationship between its use and detention. 
 There is also the question of age. Subsection (7) defines adult as 
''an individual who appears to be at least 18 years old''.
 It would help to have some clarity on that point and on how it is intended that the power will be used. 
 I echo the hon. Gentleman's comments about the criminal justice system. Like many of us, the Home Secretary has made it clear that he wants fewer people in prison in general and that we should be looking at alternatives to prison. With that in mind, I will be interested to hear whether the Minister views the power in the clause as an alternative or addition to detention.

Humfrey Malins: I want to make a few random comments and to ask a few general questions on the group of amendments on the basis that I shall not try to catch your eye on any stand part debate, Mrs. Roe. I have only a little to say.
 There are two purposes of electronic tagging in the criminal justice system. The first is to establish where a person is at the material time, and the second is to ensure that, at the material times, they are not free to commit crimes. When bail and sentences have been considered in the criminal justice world, tagging has by and large been something of a success. I planned to ask the Minister how many people she envisages being electronically tagged under the clause and what the total cost will be. However, she could rightly reply that tagging is an alternative to custody, which is even more expensive, so it may save money. Tagging is an alternative to custody for the criminal courts and is to be applauded because it does not involve deprivation of liberty. 
 At the beginning of a criminal court process, the court and police must consider bail. A recent change has been that, in addition to a judge or magistrate, a policeman can grant bail. Police bail can carry certain conditions, including one of residence, or a doorstep condition, which means that someone must answer the door when it is tapped on at night to prove that they are there. Courts and police take bail very seriously. 
 Tagging will have a role in the immigration world, but someone, somewhere will have to take a decision about who will be tagged and in what circumstances. Will the Minister say a little more about that? Does she envisage an asylum applicant appearing before, say, a district judge? Will such a judge, in his or her court, or lay magistrates have a power to impose a tagging condition on an asylum seeker? I doubt it because, by definition, people appearing in those courts have committed a criminal offence, and the asylum seeker has not. I do not see how the asylum seeker would find his or her way to a district judge or magistrate in relation to either the imposition of a tagging condition or an appeal against one. However, I should be glad of confirmation of that. I suppose that a person will be tagged on the instructions of an immigration officer or a Home Office official. Again, perhaps the Minister could say more about that. 
 The age point raised by the hon. Member for Walthamstow (Mr. Gerrard) is fair. I think that a case 
 involving the London borough of Merton in 2003 had something to say about who decides how old a person is. Tagging is meant to be for over-18s. Under the clause, someone is over 18 if they appear to be over 18 
''in the opinion of a person who . . . imposes a residence restriction''.
 Who will have that opinion, and is there any back-up? I think that, in the Merton case, the court said quite clearly that, whatever the Home Office said about someone's age, in truth the local authority should rely on its own inquiries, possibly involving a paediatrician or whoever, to make it plain what the age was. The question of age is interesting. 
 We should like just a little more explanation of cost, numbers, who will impose the measure, and age. That said, any right-minded person will broadly welcome the clause, not least because by doing so we may be ensuring that more people have their liberty than might otherwise be the case.

Tom Harris: Following the contributions by the hon. Member for Woking (Mr. Malins) and by my hon. Friend the Member for Walthamstow, can my right hon. Friend the Minister offer some clarification of the clause? The prospect of asylum seekers being tagged has been welcomed in some parts of the community as an alternative to detention. There is inevitably controversy over the Government's continued policy of detention in a very small minority of cases.
 I believe that the policy is correct, even when it means having to detain whole families, including children, provided that the periods of detention are as short as possible. However, I think that we all recognise the political difficulties arising from genuine concerns about children who, for one reason or another, are detained with their parents for longer than any of us would like. Perhaps the Minister can say that tagging will be used as often as possible as an alternative to detention specifically with regard to families with children. 
 That suggests another problem, which follows on from the points made by my hon. Friend the Member for Walthamstow last week or early this week. One justification for not separating families in detention is that, if children are placed in the community but the parents are in detention, they could be tempted to judge that they would rather their children remain in the community and the country, even if they themselves are to be deported. The fear is that they would use their children's separation from them as a way of either postponing their own deportation or ensuring that their children had a better quality of life than they would have when they returned to their homeland. 
 Will the Minister comment on how the Home Office is considering approaching that issue? Will there be circumstances in which the Government may decide that tagging is unsuitable for a family currently in detention because of information received about their motivations or history? Alternatively, will they decide that all families with children who are in detention will be suitable in all circumstances for some form of electronic tagging? 
 I should also like to know how long such a tagging regime would continue. We are reassured by the Government that families or individuals are placed in detention only when their removal is imminent or there is some dispute about their identity. That is the case with the Dungavel detention centre in Lanarkshire. Will there be a similar time restriction on electronic tagging, will people be tagged indefinitely or for what some would consider unjustifiably long periods? With those reservations, like the hon. Member for Woking, I generally welcome the clause.

Beverley Hughes: Before dealing with the amendments, I should like to set out the aim of clause 15. Clause 15 makes provision for the electronic monitoring of persons subject to immigration control who are at least 18 years old in the following circumstances: where a residence restriction is imposed; where a reporting restriction could be imposed and where immigration bail is granted subject to a recognizance or a bail bond, except where bail is granted by a police officer or in the special circumstances of the Special Immigration Appeals Commission. Therefore, it would include bail issued by a chief immigration officer—it can only be by a chief immigration officer where detention would otherwise be considered—or by an adjudicator within the immigration process.
 Persons subject to electronic monitoring in accordance with these provisions are obviously required to co-operate with arrangements for detecting and recording their location at specified times, during specified periods. The hon. Member for Winchester (Mr. Oaten) asked about alternatives. As he rightly said, the electronic means employed in connection with such arrangements could include voice recognition technology, the use of a tag to confirm a person's presence in or absence from a specific location, perhaps at a specific time and, when technology develops, tracking someone to monitor their whereabouts continuously. 
 We intend eventually to pilot all three types of electronic monitoring. They potentially have the ability to respond to different levels of risk in relation to absconding. As the hon. Gentleman said, the voice recognition technology uses biometric voice recognition software to facilitate reporting over a telephone from a fixed landline from a fixed address at a notified time. We could use that technology to obviate the need for people to report physically to a centre on a weekly basis. We would obviously specify a particular hour—there would be some flexibility—for them to ring in and to have their voice and location checked. 
 Tagging involves wearing a bracelet similar to a wrist watch, which emits a signal to a receiver at the subject's home address. We may require a subject to be at home for a particular hour in the week, or more frequently for people who present other kinds of risk to confirm that they are complying with a residence restriction. That would again serve in lieu of physical reporting. 
 Tracking involves using global positioning satellite technology to pinpoint the whereabouts of a subject on a continuous basis, and is of a different order. That technology is in its infancy. However, we seek the powers to be able to use it in the future, if and when it becomes available on a practical basis. 
 Tagging will allow those at the lower end of the risk spectrum, who would otherwise have to be detained or would have to report on an onerous basis, to be monitored electronically in other ways. That will free detention space for those whom we believe present a higher risk of absconding. Hon. Members will see that it will be potentially efficient both for the immigration and nationality directorate, and for some of the people whom we would otherwise require to report regularly. The intention is to use the provision in cases in which there is a risk of absconding, but in which we assess that that risk can be managed by electronic monitoring. 
 I now turn to some of the other points raised by hon. Members. I think that I have answered the questions raised by the hon. Member for Woking about who can grant the bail and issue the reporting restrictions for which electronic monitoring could be a substitute. In practice, although the clause mentions imposition, we can use the measures only with the consent of the people concerned, because if they do not consent to it, there is no point in using it. Detention would, however, be the only alternative for some people, and that would act as an incentive for them to consent to electronic monitoring. 
 The hon. Gentleman gave the example—I think that he answered his own question—of people appearing before district judges or lay magistrates. That would occur in criminal circumstances. They would therefore be subject to a completely different set of arrangements with regard to whether the sentence for any criminal offence included the possibility of tagging after a prison sentence. 
 The hon. Gentleman mentioned cost and numbers. My hon. Friend the Member for Glasgow, Cathcart (Mr. Harris) asked how the provisions would operate with families. It is difficult for me to give estimates of cost and numbers. We want to pilot the mechanisms gradually. However, where we believe that there is potential to use the measures extensively to avoid the expensive use of detention, we will do so, and will retain detention for higher-risk people. 
 The question of families raises some difficult issues, and I would like to consider those further. My hon. Friend raised some important points. When we consider a family, it is, by definition, a group of people. I would like to think that some of the few families who would otherwise have to be detained could be considered for electronic monitoring. However, the risk assessment is more complex, because of the potential for the family to split up if they are in the community. We would need to consider that carefully. 
 Detention should be for the smallest amount of time possible to remove someone or to obtain the documents that will enable them to be removed. We will continue to impose that constraint. When 
 someone's claim has failed, we work towards removing them, and we would want to apply that constraint to electronic monitoring as well as to detention. 
 My hon. Friend the Member for Walthamstow raised the difference in wording between the residence and reporting restriction provisions. The clause states that reporting restrictions ''could be'' imposed. The provision envisages the use of voice recognition technology to enable a person to report by telephone. It will be an alternative to reporting in person to a reporting centre. In practice, it may be reporting by telephone monthly, or in person quarterly. There could be flexibility in the way it would operate. 
 Amendments Nos. 165 and 166 would introduce a procedure for subjects of electronic monitoring to make representations to a chief immigration officer. I assure the hon. Gentleman that, as with existing arrangements for temporary admission, conditions of bail and so on, genuine reasons for apparent non-compliance with electronic monitoring are and will continue to be taken fully into account. The measures are not intended to trip up people who want to comply and who tell us voluntarily that they genuinely cannot meet a particular appointment or a particular reporting session. They are intended to ensure that those who would not otherwise comply do so more securely. Those arrangements, in which reasons for non-compliance are taken into account, have been in place for a long time. We would also apply those to the electronic monitoring requirement. 
 On amendments Nos. 169 and 174, I do not think that it is necessary to state that arrangements for electronic monitoring must be ''necessary and reasonable'', or 
''must not impose a disproportionate restriction on the liberty of the individual.''
 As I have said, decisions to require electronic monitoring will be taken following a thorough risk assessment of individual cases. It is one of a range of contact management tools available, ranging from detention at one extreme to release bail, temporary admission or temporary release, with or without conditions, at the other. We shall choose the least intrusive option necessary to manage the risk in all cases, taking into account not only the individual but our resources. 
 Turning to amendment No. 172, the rule-making power under subsection (8) is designed to maintain maximum flexibility in the light of new and rapidly developing technology. If the amendment refers to rules governing the application of an electronic monitoring requirement by immigration officers, the criteria that are used to assess the risk of absconding when we consider bail, temporary admission and temporary release are already in the public domain. Additionally, the detailed framework arrangements for electronic monitoring are in the contracts managed by the Home Office for the delivery of electronic monitoring. There is a lot of experience of that in the criminal justice system, on which we can draw. I do not feel that rule-making needs to be mandatory.

Annabelle Ewing: Will the Minister give way?

Beverley Hughes: The hon. Lady has an unfortunate habit of always intervening as I am about to sit down, but I am happy to give way.

Annabelle Ewing: I am grateful to the Minister, and I apologise for not being here at the beginning of the debate, which is why I have not sought to intervene. Obviously, these measures are far-reaching, so I am pleased to note that there will be a pilot to see if they work. Given the crossover with the criminal justice system, which is separate in Scotland, what discussions has the Minister had with Scottish Executive Ministers? What is their position?

Beverley Hughes: On these particular measures, there is not really a crossover with the criminal justice system. I was trying to make that clear. We are considering how we could apply some of the measures—as well as some of the flexibility that electronic monitoring has already demonstrated in the criminal justice system—to the contact management arrangements for people going through the immigration system. There is potential for using these measures in Scotland as part of that contact management and reporting restrictions. I can assure the hon. Lady that I meet regularly with my counterpart Minister in the Scottish Executive, and my officials are working very closely with officials in the Scottish Executive on these proposals as we develop them and think about implementing them.
 We are not going into these matters with an English and Welsh-centric perspective. Nor are we unsighted on the implementation issues that might pertain in Scotland, because this is a reserved power. We have the power to introduce a proposal such as clause 15 but there are no crossovers with the criminal justice system here. We are simply using what we have learnt about electronic monitoring and applying it—creatively, I hope—to the needs of the immigration system. 
 I hope that I have answered most of the questions and explained how the proposal will work. I hope, too, that I have convinced the hon. Member for Winchester that there is no need for his amendments.

Mark Oaten: As ever, the Minister has been extremely helpful and has brought to light how the proposal's mechanisms will work. I am largely reassured by her comments. As I said, we do not intend to oppose the measure in principle because there is merit in being able to speed up the process and in avoiding using detention, with both of which we are sympathetic.
 As to the different forms of tagging, I hope the intention is to use the lower levels of tagging when possible, and I know that voice technology is being developed. Satellite technology is up and running and being used. I have been tagged and was tracked down by a company using a satellite—as a good media stunt rather than anything else. The technology is coming on-stream; it was certainly able to follow me round for a while. 
 I am encouraged that the Government are taking a careful approach to the matter of pilots, although I cannot envisage how a pilot scheme would operate as I assume it would be difficult to arrange within a geographical area. Perhaps the Minister will intervene to explain how these schemes would work. Is it the intention that the pilot schemes would operate on a geographical basis or would satellite or voice technology be tested in pilot schemes across the country? It would be useful to know something about how they will operate and how success will be evaluated. It would be interesting to know, too, how the Government will judge whether such a scheme has been successful. 
 I can envisage circumstances in which the arrival of a couple of people to put a tag on someone could be quite frightening, especially if in the country from which he or she had fled, a knock on the door from officials could mean something severe. To that individual it would be a frightening experience if a couple of people arrived with a box of equipment and asked him to expose his ankle so that he could be tagged. I hope that the trials will not just take into account the effectiveness of the equipment, but will also make an assessment of what the experience is like and whether the individuals who use the equipment need special training to explain what they are doing. Tagging could be a frightening experience, not just for the person being tagged but for their family who may have to watch what is happening. Although in this country we may be familiar with television images of tagging being carried out, some individuals would not know what it meant and having an electronic gadget put on their leg could be quite upsetting. 
 However, with the Minister's reassurances, I am happy to beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Mark Oaten: I beg to move amendment No. 171, in
clause 15, page 16, line 34, leave out from 'who' to end of line 38 and insert— 
 '(a) confirms that they are at least 18 years old, and 
 (b) can be shown by documentary evidence to be at least 18 years old, or 
 (c) is declared to be at least 18 years old by a decision of a court, including a tribunal as defined by section 10 and for the purposes of this section by subsection (12) below.'.
 This is a probing amendment to ask for more detail about something that was mentioned by the hon. Member for Woking earlier and to which the Minister did not have time to respond. I refer to the use of electronic equipment on those aged under 18. I seek clarification about the terms used in the clause. In relation to the tagging of an 18-year-old, clause 15 includes the phrase: 
''an individual who appears to be at least 18 years old''.
 I can understand that there are difficulties, and anyone who has been out with the police on a Friday night will know that it is hard to judge the age of individuals. However, I am uneasy about the phrase: 
''appears to be at least 18 years old''.
 Surely there must be a stronger term that will provide a greater safeguard. The Minister must explain what is 
 meant by that phrase. Who will make that judgment? Will it be made by one or a number of individuals? If someone insists that they are 16, but the people making the judgment overule them, what right do they have to make their case? Will the decision be made just as the tag is about to be put on someone? What appeal mechanisms are in place? 
 Nobody would want a situation to arise whereby an individual under the age of 16 was tagged. We need stronger wording than the phrase 
''appears to be at least''.
 It is a vague way of defining the age of an individual in such circumstances.

Beverley Hughes: Perhaps I can help the hon. Gentleman. I agree that we must reconsider the issue, not least because procedures to ascertain age exist much earlier in the claim process. If someone making a claim in their own right claims to be under 18, they are referred to a children's panel, for example of the Refugee Council. If there is any dispute about age, the immigration and nationality directorate and the panel go through a process to resolve the dispute. We should not reach the stage of the process involving reporting restrictions without having resolved disputed cases. We have procedures for establishing the age of unaccompanied minors. We should consider referring to those procedures rather than allowing the possibility of an officer further along in the electronic monitoring process to decide age on the basis of what an individual looks like.
 The current wording does not take into account existing procedures for deciding age in disputed cases. I want to consider whether there is a better form of words that acknowledges the procedures that already exist. If necessary we will put forward new suggestions on Report.

Mark Oaten: I am extremely grateful to the Minister. That is a constructive way forward and we look forward to hearing what the Minister has to say either later in Committee or on Report. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 15 ordered to stand part of the Bill.

Clause 16 - Immigration Services Commissioner: power of entry

Mark Oaten: I beg to move amendment No. 95, in
clause 16, page 18, line 14, leave out from 'dwelling' to end of line 21 and insert— 
 '(7A) Nothing in this section shall authorise the disclosure of documents or information subject to legal privilege.'.
 Clause 16 has had widespread support. When the controversial measures in the clause were announced by the Government, there was support from all parties for trying to improve the quality of advice given to asylum seekers and for getting tough on rogue advisers who are ripping off some of the most vulnerable in society. The clause has some sensible measures for setting out the detail of how to track down businesses that are providing a bad service to asylum seekers. 
 Amendment No. 95 is designed to probe the Government's thinking on one aspect of how that will be done. It is necessary to have in place the power to obtain a warrant to enter and search premises where the police or immigration service have reasonable grounds to assume that bad immigration advice is being given. It will be difficult for the authorities to track down such individuals unless they are able to enter their offices and examine case notes. If an asylum seeker alleged that they had been given bad advice or that emerged in interviews as part of an appeal, and immigration officers had concerns about advice that had been given, it would be important for the authorities to be able to investigate that. 
 I have no problem with the power to obtain a warrant, but amendment No. 95 would provide that during investigations great attention is paid to the long-standing privilege between a client and their legal adviser. That is a contradiction, because we want to identify rogue advisers while not putting at risk the relationship between a client and a good legal adviser. We are concerned that as part of the search warrant exercise, papers may be gone through that are part of the confidentiality between a client and their lawyer. Will the Minister explain how she can overcome the problem of protecting the right to privacy and the special relationship while allowing the authorities to examine the papers to assess the quality of advice?

Edward Garnier: I think that I follow the hon. Gentleman's argument, but I am a little concerned about his use of the word ''bad'' in relation to advice. Does he mean poor quality or criminal? Allowing the authorities to search people's premises because they have been giving poor quality advice is one thing; allowing them to search people's premises because they are suspected of taking part in a criminal scam is another. I wonder whether the hon. Gentleman is unwittingly using language carelessly.

Mark Oaten: The hon. and learned Gentleman is right to pull me up on my layman's use of language, but I am arguing about the Government's phraseology on the ability to obtain a warrant to investigate whether an unqualified person is giving advice.
 My argument on confidentiality remains the same for two reasons. First, the asylum seeker has given information on the basis that there is a client relationship and an element of trust. Secondly, other individuals on the premises may be operating legally and their information should be protected. An absolute assurance is needed that when investigations take place, the search and the information revealed is handled sensitively to protect the source of the information—the asylum seeker. Will the Minister give some assurances on how the Government plan to deal with the information without thwarting the intention of the clause, which we support?

Humfrey Malins: I have a number of points to make. The first has been referred to and is the question of privilege. As we know, privilege is important in life, whether it is between doctor and patient, clergyman
 and parishioner or solicitor and client. I hope that the Minister will say more about that, because the relationship between a client and his solicitor is entered into often only on the basis that the client knows that his relationship and documents are and will remain privileged. That is an important principle, which I hope the Minister will consider.
 I turn now to amendment No. 96. I am indebted to Mr. Clancy, director of the Law Society of Scotland, with whom I discussed the matter. I hesitate to trespass on Scottish matters, because the hon. Member for Perth (Annabelle Ewing) and the hon. Member for Glasgow, Cathcart—both of whom have contributed fully to our debates—are here. The clause concerns warrants. It is commonplace in the English courts for an application for a warrant to be laid before a district judge or a magistrate.

David Heath: Next amendment.

Humfrey Malins: It is the next amendment. My goodness. Does not that show how eager I am to get to the point? I wondered, Mrs. Roe, why the hon. Gentleman did not mention it. I shall sit down.

Marion Roe: Order. I was wondering what point the hon. Gentleman was coming to before calling him to order, but now other hon. Members have done so.

Humfrey Malins: I will save the balance of my remarks, which are substantial and interesting, for later in the debate.

Annabelle Ewing: I fully support amendment No. 95. I take the view that the Government's proposals go too far in lifting legal privilege, which is an important doctrine in the legal systems of the United Kingdom and has been recognised as such by the ECHR. It has also been recognised recently by the Minister's colleague, the Under-Secretary of State for the Home Department, the hon. Member for Don Valley (Caroline Flint) in the debate on the Report of the Crime (International Co-operation) Bill, in which I participated. She said:
''There is extensive case law on legal professional privilege, which is a fundamental condition on which the administration of justice rests.''—[Official Report, 14 October 2003; Vol. 411, c. 43.]
 I entirely concur with the hon. Lady's comment. What possible justification can there be for lifting professional privilege?

Beverley Hughes: I hope that I can assure hon. Members that the measure is necessary and proportionate. It does not jeopardise and would not in any way be contrary to the client's interests—that is the central issue here—or the preservation of the principles of legal privilege. Clause 16 would allow the commissioner, in pursuit of his statutory remit, to regulate advisers and ensure the highest quality practice among advisers, and to seize and retain any material for which a search is authorised.
 In order for the commissioner to gain evidence relevant to his statutory duties, he would probably need to include material that is subject to legal professional privilege. However, this amendment would prevent the commissioner from accessing such material, even though it is likely to be of substantial 
 value, if not essential to his investigation. I understand the hon. Lady's concerns, but I do not think that the amendment is necessary to achieve what hon. Members want to achieve.

Mark Oaten: The concern that I have is not about the individual examining that material—that is essential if they are to make a judgment about the quality of life being given—but about its disclosure, what may happen elsewhere and whether it would be used as part of the general profile of the asylum seeker.

Beverley Hughes: I agree and I was getting to that point. The key issue is the question of disclosure, as the hon. Members for Winchester and for Woking have suggested. The rationale behind the doctrine of legal professional privilege is that the administration of justice requires that everybody should be able to consult a lawyer—in this case, an immigration adviser—or prepare a case for litigation, without fear that information given to their lawyer or adviser will later be revealed in court against their wishes and interests, or revealed in a process that would be against their wishes and interests. The doctrine thus protects those being advised, primarily in the context of litigation in which they are involved.
 Clause 16 is not intended to compromise those who have received advice from unregulated advisers and I do not believe that it will do so. The commissioner has no remit and no power to investigate the client and their immigration status. That would be contrary to his statutory remit. Onward disclosure by the commissioner of information that he has obtained during the exercise of his statutory duty is limited by section 93 of the Immigration and Asylum Act 1999. The purpose of this power is to provide information to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising. 
 The commissioner's statutory remit relates only to the regulation of advisers. The information will not be forwarded to the IND. The concern is that the information may leak into the process of determining someone's immigration status or how we deal with them. The limitations are set out in section 93, which specifies, in addition to the fact that the person's consent must be obtained, four purposes for which the commissioner may disclose information onwards. Those would not include disclosure to the IND on immigration matters. 
 I am entirely confident that the commissioner would not abuse his power. He is an independent regulator, his powers and duties are set out in statute and he is clear about the issues relating to disclosure. I do not believe that the limitations set out in statute and the commissioner's status and purpose as an independent regulator would allow him to pass information on to the immigration system. The purpose of the power is to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising. 
 The power is subject to the requirement of a warrant. Before the commissioner can exercise the powers of entry, search and seizure, he must satisfy a justice of the peace on a number of conditions, which are set out in clause 16(2) and (3). Those are intended 
 to ensure appropriate and proportionate use of the powers. If the JP considered that there was any defect in the commissioner's proposal, a warrant would not be issued. 
 For the reasons given, I think that the clause will not result in onward disclosure to the immigration system and that, as far as the interests of the client are concerned, the principles of legal privilege will be sustained. I therefore hope that the hon. Member for Winchester will withdraw the amendment.

Mark Oaten: Again, the Minister has reassured me, particularly regarding onward disclosure, which was the purpose of tabling the amendments. I am reassured that the information that is an element of privilege will not get into what are the wrong hands from the asylum seeker's perspective but, as ever, other issues cropped up in my mind as the Minister was talking.
 I shall place two concerns on the record. First, we are talking about information and papers that relate to an individual asylum seeker's claim. Through no fault of their own, the asylum seeker may suddenly discover that the person advising them and, indeed, all their papers are to be taken away and investigated from the perspective not of the asylum seeker's case, but of the advice that is being given. There is a real concern that if, in a twin-track process, that individual is due to appear the next week at a critical hearing, they will have to say that they have no legal advice and they are a little bit stuffed, because all their papers have been taken away and are being investigated by someone else, which has nothing to do with them. The power is not only to look at and seize, but to retain the papers. In such circumstances, there is anxiety about what would happen. 
 A second concern, which has just popped into my head, is that we are assuming that the investigation to examine whether an unqualified individual is giving advice will prove that they were doing so. However, there may be no such evidence. We need reassurances that in those circumstances all the papers will be given back as soon as possible so that the person who may turn out to be qualified and giving good advice can carry on doing so. As I thought of those things rather late, the Minister may not have a chance to respond to my questions.

David Heath: In the circumstances that my hon. Friend describes, would there not be a potential issue involving the Legal Services Commission and legal aid, especially if the ideas of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy) about restricting legal aid for a first interview go ahead? The process would effectively have to start again after that. I hope that there will be a marriage between the administrative arrangements and the legal arrangements.

Mark Oaten: My hon. Friend makes a good third point. It is a pity we did not deal with all of them earlier.

Edward Garnier: Does not this tie in with the concerns that we expressed earlier about clause 10? Irrespective of the fact that the documents have been taken away for some other purpose, if the tribunal system concludes that it will nonetheless go on to take a
 decision that could be adverse to the asylum claimant's interest, that claimant has no recourse to the hierarchy of appeal courts. We should think about that more carefully. The issues that the amendment reveals are more complicated than they appeared at first blush. There are several interlocking issues that need to be considered. Charming as the Minister's response has been to these questions, she will not have had time to get her head round all of them straight away. I hope that the hon. Member for Winchester will persuade her to come back on Report with a more considered view on the whole matter.

Mark Oaten: I am grateful for the hon. and learned Gentleman's intervention, as it adds another issue. Perhaps no one on the Opposition side of the Committee read their briefings properly in advance and we should have raised these points earlier. The Minister may have detailed answers which we do not have time to hear because of my stupidity in not raising these matters earlier. However, I hope that she will reflect on the fact that although we have no concern about the clause, and we are reassured on the point about the onward disclosure of information, what has emerged in the last five minutes is concern that asylum seekers could lose out as a result of the process. If investigations are taking place and they do not have papers or an adviser, asylum seekers could end up falling foul of the system through no fault of their own. At some stage, if there is time, I should be grateful to hear what the Minister has to say on the matter. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Mark Oaten: I beg to move amendment No. 96, in
clause 16, page 18, line 23, leave out 
 'or a justice of the peace'.
 The hon. Member for Woking jumped way ahead and started to deal with some of these issues. I wish he had continued because I am not entirely sure of my ground on this one and even the Prime Minister is occasionally allowed to read out things at Prime Minister's questions. 
 The amendment would ensure that arrangements are in place in relation to Scotland, where a sheriff only and not a justice of the peace will be entitled to grant the search warrants referred to in the clause. The view of the Law Society of Scotland is that the power to grant warrants under clause 16 should extend to sheriffs only; the hon. Member for Perth will be able to explain why that power is required in Scotland. However, I am sure that the Minister will reassure the Committee, as ever throughout the Bill, that the arrangements being put in place are satisfactory in respect of the occasional differences that occur in relation to Scottish law.

David Heath: Was my hon. Friend going on to refer to clause 67 of the Anti-terrorism, Crime and Security Bill on the next page of his notes?

Mark Oaten: I was going to say that I was grateful to my hon. Friend, but I am not. I am sure that if he had been able to speak for longer, he would have said that
 a similar point was made in relation to search warrants under section 67 of the Anti-Terrorism, Crime and Security Act 2001. It is a jolly good point and I hope that the Minister has a chance to address it.

Humfrey Malins: The hon. Gentleman has made the point made by Mr. Clancy from the Law Society of Scotland. The question here is the power to issue a warrant. A number of serious issues are heard before magistrates in England. They can hear interlocutory applications and bail applications in cases ranging from murder to trivial offences. A huge variety of matters come before magistrates in our jurisdiction. It is thus thought that they carry greater responsibility than Scottish magistrates. Even on interlocutory matters such as bail conditions and so on, the more serious cases would go automatically to the sheriff and the magistrate would play no part. It is thus argued forcefully by the Scottish Law Society that is more appropriate for a serious matter like a warrant to be reserved to a sheriff rather than to a magistrate.

Tom Harris: On a point of information, although I understand that the system of JPs is being reviewed, and the hon. Member for Perth may want to refer to that, JPs already sign warrants for search and arrest.

Humfrey Malins: The very point that I put to the director of the Scottish Law Society. I asked whether warrants are issued by JPs in Scotland. He said yes, which in a sense detracts from my argument. The principle that the Law Society was propounding is quite simply that there is a difference between the jurisdictions of the magistrates in the two countries, which should be reflected in this part of the Bill.

Annabelle Ewing: I support the amendment. The key issue may be that in Scotland as a general rule JPs are not legally qualified. That should be the starting point. Echoing the points made by the hon. Member for Woking, that is the crux of the matter. The position may well be different here.

Humfrey Malins: Not here.

Annabelle Ewing: Not in England. That raises another issue for hon. Members with seats south of the border. In Scotland we have a clear role for the sheriff and the sheriff courts. The concern is that the measure would unduly upset the balance of law in Scotland with respect to the operations of the sheriff court and the operations of JPs.

Tom Harris: Without being tempted to digress from the specific issue, would it not be inconsistent not to give the power of authorisation to JPs in this circumstance, but to allow them to retain the power to grant warrants in other circumstances outwith the remit of the Bill, simply because they are not legally qualified? If we are not going to give them this power, why should they retain their current power?

Annabelle Ewing: The hon. Gentleman poses an interesting question. My attitude would be to preserve the important role of the sheriff and the sheriff court system. It has done the Scottish legal service a lot of credit down through the centuries. The hon. Gentleman referred to the ongoing review in
 Scotland of the role of JPs and, in effect, laymen. That issue may arise in the review.
 Returning to the amendment, I urge the Minister to reflect on the issue, because it is important to Scots law. To echo the point raised by the hon. Member for Winchester—prompted by the hon. Member for Somerton and Frome—it was accepted in the Anti-terrorism, Crime and Security Act 2001 that the power to issue a warrant should rest with the sheriff and the sheriff court. I do not see why the position should be different now.

Beverley Hughes: Perhaps I might be allowed to respond to the points raised earlier by the hon. Member for Winchester. He is right about the potential impacts on the immigration process of a person whose documents were seized as a result of the commissioner's investigating his adviser. The issues are important. They are logistical issues of administration, which we must get right.
 We are speaking to the commissioner about how to ensure that people are not disadvantaged if they lose their adviser. We have a process of immediate liaison with the Legal Services Commission to appoint a new adviser. I am happy to write to the hon. Gentleman, when we have concluded discussions with the commissioner, outlining that process in some detail. He is right that we need to establish processes to ensure that a person's immigration application is not disadvantaged by his adviser's being investigated. 
 On amendment No. 96, this is one of the rare occasions when a Minister can say that everyone is right in the points that they made. On this and some Government amendments to come later, we appreciate the points that have already been made. We are consulting Scottish Executive colleagues on whether only sheriffs should have the power to issue the warrants. Notwithstanding the comments of the hon. Member for Perth—to whose knowledge I defer—the position of JPs in Scotland is complicated. I take the point made about the different jurisdictions, but some JPs in Scotland have signing powers for warrants and others do not. At present, both sheriffs and JPs can sign some warrants, although I heard the arguments against JPs doing so. I will have to return to that on Report, because we are still holding talks with the Scottish Executive.

Edward Garnier: The Minister should look at page 17, line 25, which reads:
''On an application made by the Commissioner a justice of the peace may''.
 There are then references to a justice of the peace throughout that clause. Justices of the peace in England, Wales and Scotland are not legally qualified. I understand the arguments made by the hon. Member for Winchester, but if the Minister accepts them with alacrity, she may end up producing a different approach for Scotland from that in England and Wales. That does not matter as long as she knows that that is what she is doing. A justice of the peace in England is not a ''district judge (magistrates courts)''—what we used to call a stipendiary magistrate—who is legally qualified. Before she gets too overexcited by the hon. 
 Gentleman's points, she should understand what happens if one thing is taken away and not replaced by another.

Beverley Hughes: We must do something precisely because we have a different system and we do not have sheriffs. I was careful to say that I am not sure that I will come back with an amendment in the proposed form, because we need equivalence in the level in the judicial system at which the decision to sign a warrant is made. All those issues, not just in Scotland but in England and Wales, need to be balanced. I am not in a position to say what the conclusion of those discussions and the evaluation will be. I would therefore be grateful if the hon. Gentleman would withdraw the amendment, because I need to return on Report with our considerations of that matter and of some other matters related to Scotland.

Mark Oaten: I am grateful for the Minister's co-operation on that other issue related to the previous clause and look forward to those important points being taken into account. Given the reassurance that we have been given that the drafting team will re-examine the issue, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Beverley Hughes: I beg to move amendment No. 147, in
clause 16, page 18, line 24, at end insert— 
 '(9) In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 (c.60) shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).'' '.
 The amendment is technical, and relates to the commissioner's power to seize and retain 
''material subject to legal privilege, excluded material or special procedure material.''
 In England and Wales, those categories of material are defined in relation to the Police and Criminal Evidence Act 1984. The amendment provides that the definition of such material in relation to Northern Ireland is contained in the Police and Criminal Evidence (Northern Ireland) Order 1989. It is another measure for which similar provisions will have to be made for Scotland. That will form part of our discussions with colleagues in the Scottish Executive; I may need to introduce a further provision on Report to cover the Scottish situation. 
 Amendment agreed to.

Beverley Hughes: I beg to move amendment No. 148, in
clause 16, page 18, line 24, at end insert— 
 '(2) In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c.33) (investigation of complaints, &c.:power of entry)— 
 (a) in sub-paragraph (1)(b) after ''(b)'' insert '', (c)'', 
 (b) in sub-paragraph (1)(c) for ''registered person.''substitute ''registered or exempt person.'', 
 (c) in sub-paragraph (1A)(a) after ''(b)'' insert '', (c)'', 
 (d) in sub-paragraph (1A)(b) for ''registered person.''substitute ''registered or exempt person.'',and 
 (e) after sub-paragraph (8) insert— 
 ''(9) Sub-paragraphs (7) and (8) shall apply to an exempt person as they apply to a registered person, but with a 
reference to cancellation of registration being treated as a reference to withdrawal of exemption. 
 (10) In this paragraph ''exempt person'' means a person certified by the Commissioner as exempt under section 84(4)(a).'' '.
 As we have heard, the clause gives powers of entry, search and seizure to the commissioner. The amendment will ensure that the commissioner can exercise those powers to enter premises in respect of exempted advisers as well as the registered advisers that are included in the clause as currently formulated. Exempted advisers are exempted from the fee that they would otherwise have to pay the commissioner, because they operate on a voluntary basis. Unlike registered advisers, they do not provide immigration services in the course of a business, and therefore do not pay the fee. Nevertheless, in terms of the quality of advice that they give to their clients, it is just as important that the commissioner can use his power in relation to them. It is important that we treat those advisers equivalently.

David Heath: I want to be absolutely sure that the category of exempt advisers does not include elected representatives and their staff.

Beverley Hughes: I can safely assure the hon. Gentleman that that is the case, although I will check it. I hope that, with that clarification, hon. Members will support the amendment.
 Amendment agreed to. 
 Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 - Offence of advertising services

Beverley Hughes: I beg to move amendment No. 149, in
clause 17, page 19, line 14, at end insert— 
 '( ) A complaint charging the commission of an offence under this section may in Northern Ireland be heard and determined by a magistrates' court if— 
 (a) it is made within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or 
 (b) it is made— 
 (i) within the period of two years beginning with that date, and 
 (ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.'' '. 
This is similar to amendment No. 147, in that it is technical, and ensures that, as is the case in England and Wales, proceedings in Northern Ireland relating to an offence under the clause can be heard up to two years after the commission of the offence. That will be possible provided that it is within six months of the date certified by the commissioner as the date when the commission of the offence first came to his notice. Similar provisions will need to be made for Scotland, and that will be part of our discussions with Scottish colleagues. An amendment may be required on Report 
 to cover the Scottish situation. However, the amendment relating to Northern Ireland is straightforward. 
 Amendment agreed to. 
 Question proposed, That the clause, as amended, stand part of the Bill.

David Heath: I shall be brief because I entirely support the clause. Will the Minister clarify where the offence is committed? That is crucial to understanding the prosecution of the offence. I understand that the clause affects those who purport to offer advice services in the United Kingdom. However, is the offence committed at the point of the advertisement being made? If the advertisement is made and arranged in another country, has an offence been committed? That is pertinent because many people will advertise not in the UK but in communities from which they hope to gain business, and which fall under another jurisdiction. We must phrase the clause so that it covers UK advisers seeking to advertise their services in such communities. Causing the advertisement to be made should be the offence, regardless of whether it is arranged in another country.

Tom Harris: Is the hon. Gentleman also concerned about the possibility of advertisements being posted on the internet, perhaps using a server that is outside the jurisdiction of the UK?

David Heath: I am grateful to the hon. Gentleman and I intended to raise that point. I believe that, for the purposes of the law, if someone puts something on the internet, it counts as publishing within UK jurisdiction. If someone has taken no action to arrange an advertisement in this country, but their cousin in Bangladesh takes out an advertisement purporting to offer advice services, I am not clear whether an offence has been committed under the Bill. I think that that should be an offence, and I hope that it is possible to phrase the clause appropriately.

Beverley Hughes: Since the Bill was drafted, the immigration services commissioner has considered the issue of advertisements that appear only in another country or on the internet. As far as I recall, the clause only covers advertisements in the UK. The commissioner is examining that because primary legislation would be required for that to be extended. The commissioner has already brought the hon. Gentleman's point to our attention, and we are examining it.
 Question put and agreed to. 
 Clause 17, as amended, ordered to stand part of the Bill. 
 Clause 18 ordered to stand part of the Bill.

Clause 19 - Professional bodies

Annabelle Ewing: I beg to move amendment No. 144, in
clause 19, page 19, line 27, after 'information', insert 
 'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

Marion Roe: With this it will be convenient to discuss the following amendments:
 No. 145, in 
clause 19, page 19, line 36, after 'information', insert 
 'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.
 No. 146, in 
clause 19, page 19, line 40, after 'information', insert 
 'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

Annabelle Ewing: These three amendments are technical amendments that seek to clarify that the information requested by the Office of the Immigration Services Commissioner must relate solely to information
''in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.''
 I thought that that would have been the Government's intention. It is also in the interests of legal certainty to include that definition of the scope of the provision. The Minister referred to the fact that the commissioner's powers are set by statute, but it is not unheard of for a statutory body to act ultra vires. I urge her to consider the amendments. 
 Subsection (4) introduces the statutory duty of compliance by all designated professional bodies to a request for information by the Office of the Immigration Services Commissioner. I understand that the possible motivation for the new provision may be the difficulties that have arisen with information flows, in particular between the OISC and the Law Society of England and Wales. The OISC's annual report for 2002–03 refers to such problems. Interestingly, it states on page 48 that some 94 per cent. of the complaints that were referred during that period to designated professional bodies by the OISC, were referred to the Law Society of England and Wales. If those problems are the prime motivation behind the new provision, is it appropriate to encompass all designated professional bodies in subsection (4) merely to deal with the problems of one body—the Law Society of England and Wales? 
 The Minister will know that the Law Society of Scotland concluded a memorandum of understanding with the OISC on 3 October 2003. As far as I am aware, that arrangement has worked satisfactorily to date. The Law Society of Scotland is an important body in Scotland, so will the Minister consider its example? When designated professional bodies are voluntarily working well with the OISC, is it necessary to impose a blanket statutory duty of compliance? Would it not be better to separate out the bodies with which the office has particular problems and find appropriate language to deal with them? I look forward to the Minister's reply.

Beverley Hughes: As the hon. Lady said, clause 19 requires the designated professional bodies listed in section 86(1) of the Immigration and Asylum Act 1999 to comply with a request by the commissioner for the
 provision of information, which may be general or specific to a particular case of matter.
 The amendment would provide that the only information that a designated professional body must provide would be that relating to the provision of immigration advice by persons regulated by the body. The amendment is not framed to remove references to general information, but its effect would be that the commissioner's ability to request general information would be severely undermined. 
 The requirement has not been informed specifically by a problem with flows of information from any quarter. It exists primarily because an important part of the commissioner's statutory duty in his annual report and report to the Secretary of State is to detail the designated professional bodies' effectiveness in regulating their members in the provision of immigration advice and services. Clause 19 reflects that duty—hence the references to general information. In order to fulfil that duty, it is not only advice in relation to specific cases that is important. 
 For example, the commissioner would need statistics on the number of complaints sent directly to designated professional bodies, and how many were upheld. Clause 19 will ensure that the commissioner receives the information that he requests, either general or specific, that is necessary for him to fulfil his statutory duty. The amendment would compromise that. It is not necessary. The type of information that he may reasonably request is limited to what is necessary for him to fulfil his statutory duties relating to immigration advice. Any request unrelated to those responsibilities would be unreasonable and subject to judicial review. 
 Not only are the amendments unnecessary but they would severely circumscribe the commissioner's ability to fulfil his statutory duties, so I ask the hon. Lady not to press them.

Annabelle Ewing: I was listening closely to the Minister. I do not accept the premise that the amendments would severely curtail the commissioner's statutory duties, but I have heard what she said. I am grateful that we have heard a greater explanation of the scope of the commissioner's proposed powers. I note that the Minister did not respond—quite properly—to the extra comments that I made, but I hope that she will reflect on them. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 19 ordered to stand part of the Bill.

Clause 20 - Fees

Humfrey Malins: I beg to move amendment No. 76, in
clause 20, page 20, line 43, at end add— 
 '(6) No fee shall be prescribed under the provisions of this section in respect of any application or process in respect of a student, prospective student, student nurse, postgraduate doctor, postgraduate dentist, trainee general practitioner, academic visitor or a dependent of such a person.'.

Marion Roe: With this it will be convenient to discuss the following:
 Amendment No. 77, in 
clause 20, page 20, line 43, at end add— 
 '(6) Instruments prescribing fees under the provisions of this section shall ensure that no student, prospective student, student nurse, postgraduate doctor, postgraduate dentist, trainee general practitioner, academic visitor or dependent of such a person shall have to pay more than once in any period of ten years a fee that exceeds the administrative cost of determining the application or undertaking the process.'.
 Amendment No. 78, in 
clause 20, page 20, line 43, at end add— 
 '(6) No fees shall be prescribed using the powers conferred in this section unless the Secretary of State has first given at least three months' notice of his intentions and consulted with bodies and individuals appearing to him to represent the interests of those affected.'.
 New clause 2—Charges— 
'At the end of section 5 of the Immigration and Asylum Act 1999 (c.33)(charges) add— 
 ''(8) Regulations made under this section may confer discretion on the Secretary of State or another person to waive or to refund all or part of any fee in cases when, in the opinion of the Secretary of State or any person designated under the regulations, mistakes have been made, insufficient leave has been given, delays have occurred, passports have been lost or misdirected, or payments have been mishandled.''.'.

Humfrey Malins: We find ourselves concerned with a clause that has raised some worries in the education world. I know that the Minister has received representations from a number of bodies. The university of Cambridge vice-chancellor's office wrote to the Home Secretary at the beginning of this week, but there have also been representations from Universities UK and the Council for International Education. Summing up the problems that my amendments seek to address, the university of Cambridge got it about right. The vice-chancellor's office wrote:
''We believe that this Bill signals an intent to introduce charges for visa applications which will harm student recruitment, damage access efforts, and further burden students who are already making great financial contributions.''
 A summary of the concerns might be put as follows. It is argued, first, that the fees provided for in clause 20 should not apply to international students or dependants; secondly, that the international student market is worth an estimated £5 billion a year to the UK economy; thirdly, that international students contribute through income tax and national insurance contributions for part-time and vacation work; and fourthly, that there have been some negative experiences from the introduction in 2003 of immigration application charges, which have failed to lead to an improved service. In short, to introduce over-charging for students would be short-sighted and would risk alienating the international student market. 
 As briefly as I can, with the material in front of me, I shall speak to my amendments. Amendment No. 76 would ensure that fees in excess of the actual cost of determining the application would not be charged to students and others mentioned in the amendment, or their dependants. It is mainly a probing amendment to discover how the Government intend the provisions to affect students and their dependants. 
 The Minister does not need reminding that fees for extensions to and variations of leave under the 1999 Act were introduced only last summer. They were said to be cost-recovery fees only, but they still amount to a staggering £155 for a postal application and £250 for a personal application. Students are one of the groups worst affected by the charges, despite the fact that education is a vital export. Students now face the prospect of having to pay an entry tax to the Exchequer for the privilege of entering the UK. 
 Whatever the Minister may say about students being eligible for free treatment under the NHS and free access to education for their children, many international students work while they are here and pay taxes and national insurance. I know that the Minister believes, and the Prime Minister certainly believes, that international students are very important to the UK. I recall the Prime Minister's initiative to recruit more international students. In publicly funded higher education alone, there are about 240,000 international students, which I believe is about 12 per cent. of all students in higher education. Other arguments could be advanced, but the Minister will know what they are. 
 The point of amendment No. 77 is to remind Ministers that students are the group most likely to have to make multiple applications in order to complete a programme of studies here because of the way in which the system operates. According to the latest published Home Office figures, students are the single largest category of applicants for extensions. In 2001, there were more than 83,000 student applications for extensions, out of a total of 189,000 for all purposes. International students are therefore not a marginal group, but a major element in the equation. Students may have to make more than one application on behalf of themselves and their dependants, either because they progress from one course to another—for example, from A levels or a foundation course to a degree, or from an undergraduate degree to a masters or a doctorate—or because at the time of their original application, they were not given sufficient leave for the planned duration of their studies. The Minister will understand the thrust of my amendment. I know that she has carefully read the points raised by the various bodies that I mentioned and I need say no more about this amendment. 
 Amendment No. 78 relates to consultation. On Second Reading the Home Secretary guaranteed that the Government would consult before laying an order before the House. When what is now section 5 of the Immigration and Asylum Act 1999, which provides for cost recovery charges, was in Committee, the then Minister of State, now Minister for Trade and Investment, recognised that 
''We are looking for ways to encourage more students to come in . . . We shall consider proposals for students in due course when regulations are introduced. It would be appropriate to discuss the detail of specific categories of fees and the figures in a debate on those regulations.''—[Official Report, Special Standing Committee, 15 April 1999; c. 555–563.]
 He continued in the same vein. 
 Contrary to what was said in 1999, and ignoring their own consultation protocol—there was no prior consultation or publicity—the Government introduced regulations just before the summer recess, which is the worst possible time for students. It is important to try to avoid repeating that mix-up by ensuring that proper notice is given of the timing of the introduction of new charges, and that no regulations or orders are made without advanced consultation in accordance with the guarantee given by the Secretary of State and with the Government's own consultation protocol. If that guarantee is worth anything, the Minister will not mind including it in the Bill. 
 New clause 2 relates to errors. When the 1999 Act was first considered in another place, an amendment to section 5 was considered that no fee should be charged if an application was made necessary by a mistake of the Secretary of State or his agents. Speaking in that debate, the noble Lord Falconer promised: 
''We shall ensure that when fee regulations are made, appropriate provision is made to deal with errors which may occur.''—[Official Report, House of Lords, 12 July 1999; Vol. 604, c. 49.]
 It later became clear that the Act had been drafted to preclude the making of such provision under the regulations. We would hope to put that right. We want the Home Office to consider being able to waive fees where applications are necessary only to correct mistakes. That is the purpose of new clause 2. I shall not go further into the matter, but the Minister of State will be aware that errors are made. 
 The main purpose of new clause 2 is to ensure that Ministers do not respond to the many criticisms of how charging has been introduced and managed, by hiding behind the argument that the legislation gives them no discretion in responding to blunders of the sort that we know are made.

Mark Oaten: I rise briefly to support the amendment. The hon. Gentleman is right to raise concerns about the clause, particularly in relation to students, nurses, doctors and other individuals who will be affected. I do not wish to add to the hon. Gentleman's points, because he has made them strongly, particularly in relation to the briefings from universities. I hope that the Minister will say something about that. I am sure that many hon. Members recognise the shortage in the nursing and caring professions. My local hospital is trying to encourage individuals to help with that skills shortage, as are other hospitals. Any barrier to that will make things harder for those hospitals. The hon. Gentleman's points were well made.
 The issue extends beyond fairness for students and nurses to the general principle of fairness behind setting an appropriate fee in the first place. Could the Minister say—she will not be bound by what she says—whether she envisages the figure settling closer to £155 or £500 in the next year or so? It would be hard to envisage the figure doubling, given that inflation is currently at around 2 or 3 per cent. The Government will have a hard time justifying an increase to above £200 or £250. A guarantee on that from the Minister would be helpful. 
 Can the Minister say what proportion of the increase is due to new costs and what proportion is, 
 for want of a better word, profit? That is, what proportion is money-making on the back of the fees? It would be helpful to know how much change will take place and exactly what the additional costs will be. I would be sympathetic to a system that imposed a fee that was based on the cost of the processes involved. I would be less sympathetic if a stealth charge was imposed and I would certainly want to know where the money from that was going if there was a profit-related element the charge. 
 Finally, when a fee goes up or a change is made, one often expects a linked improvement in the service. There are concerns about the delays and inefficiencies in the service, so I would hope that an increased fee would lead to an improved quality of service. If, however, the fee increases beyond the administrative costs and there is no improvement, everybody gets an unfair deal, not just students. That would be particularly unfair because some of the individuals applying and having to pay fees will be those who can least afford to pay them. I hope that the Minister can give some assurance on those issues.

Beverley Hughes: First, let me put the charging of fees into context. Some rebalancing is required, because, unlike many countries—Australia, New Zealand, Canada, the United States, France, Germany, the Netherlands and others—that offer education and other services for people who enter the country for various purposes and have charged for a considerable time, the UK has not previously charged. Countries' charging structures vary and there is a range of charges. Some are levied on entry clearance, some in country as we propose.
 In many respects, people who enter this country, particularly students, are being charged in a competitive global market. We want to encourage people to come to the United Kingdom to study and work, where that supports our labour market. We have to compete with other countries that want those particular incomers. However, given that the United Kingdom has previously not charged anything to cover the cost of administering its system, whereas other countries charge substantial amounts and have done so for a considerable time, it is in the wider interests of the British public to introduce into the equation a factor that relates to our potential to recoup some of the cost of administering the system. 
 We need to strike a balance between not jeopardising our position in international markets, being fair to students and other groups, and not charging at a level that would constitute a disincentive, because that would not be in our interests. We must be fair to the British taxpayer and must use the additional income to improve service standards—that was one of the starting points mentioned by the hon. Members for Woking and for Winchester. 
 The investment that has been made on the back of the increased charges has enabled us to improve the service standards. We now complete same day service applications in 99 per cent. of cases, compared with 87 per cent. last year. In the case of postal applications, 49 per cent. were completed within three weeks last year and 80 per cent. are now dealt with in that time. In terms of our overall service 
 standard, almost all cases—99 per cent. compared with 81 per cent. last year—that arrive by post are processed within 13 weeks. Those that are not completed are complicated or are missing some details. 
 Hon. Members might care to visit the new public inquiry offices, particularly the one in Croydon which has changed beyond recognition since I first saw it on becoming Minister and vowed to change it. It is a customer-focused, customer-oriented, pleasant environment with the modern system of numbering—visitors are seen speedily and, if they have all their documents and their money, can make their applications over the counter and get them sorted out straight away. The measures have resulted in real benefits to students and others. 
 The provision in clause 20 is an enabling measure, to allow for the revision of the way in which charges are made. We have made no firm decisions on how the powers in the clause should be exercised in the immediate or long term. The powers should be as flexible as possible. Many points raised by hon. Members about particular groups will be considered when implementing the additional provisions in clause 20. The clause does not set out how the provisions should be exercised, nor does it stipulate time limits. 
 I accept the point made by the hon. Member for Woking about amendment No. 78, which refers to the consultation process. I understand his concern and was apologetic in the debate. Notwithstanding previous commitments about specific forms of consultation, charging provisions were included in the 1999 Act. We announced our intention to implement them in the White Paper published in February 2002. The White Paper constitutes a consultation process. We are bound by the provisions of existing legislation to recover only costs. Treasury rules allowed us no flexibility over the level of fees. The potential to consult was limited, as was what we could consult on. 
 I accept that I am on the back foot and I assure hon. Members that we will consult widely when considering how to use the additional powers. Those additional powers could allow recovery over and above costs. We would not be bound by Treasury regulations and would have to consult widely and on a time scale that conforms with normal Cabinet Office standards. I hope that the hon. Gentleman will accept my assurance that, because the powers are wide-ranging, we will try and get the consultation right. 
 Amendment No. 76 would limit the potential scope of the enabling power. The clause does not prevent the Secretary of State from excluding certain categories of applicant from a cost charge or from setting differential rates for certain categories. Indeed, the existing fee setting powers referred to in the clause already allow him to do the latter. Those provisions allow the setting in secondary legislation of different provisions for different circumstances. I hope that the hon. Gentleman will accept that primary legislation is not appropriate for such exemptions. The secondary 
 legislative process is the correct process through which to prescribe the detail. 
 I take on board the hon. Gentleman's points about students and the occupations highlighted in the amendment. Many of those jobs are in the public sector, and we would not want to overburden the public sector by transferring the cost of the fees on to it. We want to take all of those issues into account. 
 Amendment No. 77 would have a similar impact in reducing potential income, because it would limit the number of times that a person might have to pay a charge. Students do not have to make successive applications for extension. I have taken great care to ensure that students know that they can apply for entry clearance outside the UK—a student visa costs £36. They can apply for the full period of their first course of study, whether it be one, two or three years, so would face no in-country charges. Some people arrive as students and are able, if they obtain their qualification, to switch to other categories, such as an employment-related category. They would be on a higher salary income and we do not think it right to exclude the potential of a further charge in such circumstances. 
 New clause 2 would amend the original charging legislation in the 1999 Act. Fees have been prescribed for applications for leave to remain, variation of leave, transfer of an indefinite leave stamp and so on. There is no facility to waive fees in the charging legislation. Other than the very few people who are legally exempt from the charge, everyone must pay for their applications to be processed. 
 However, that does not mean that we cannot deal with cases of maladministration. Certainly in the charging regime, they do not occur with any significance, but I can understand the wish for some remedy if an error does occur. The power to make an ex gratia payment in cases of maladministration exists independently of the charging regime. It is used and would be used in relation to this power if necessary. 
 I hope that the hon. Member for Woking feels that I have covered his points. I know that Opposition Members have reservations about this issue. I say to the hon. Gentleman that we are trying to strike a different balance that reflects the interests of the UK generally in attracting the people whom we want to attract; that does not disadvantage those people unduly; and that recognises the interests of the British taxpayer and does not require the taxpayer to foot the total bill for the administration of the fees and charges. With those comments, I ask the hon. Gentleman to withdraw the amendment.

Humfrey Malins: At one stage, the Minister said that she found herself on the back foot, but one of her many qualities is that she can make a comment such as that without appearing any the weaker—indeed, quite the reverse. I, for one, value that sort of observation and regard her even more highly for it. I think that she understands the points that hon. Members are making, and she had something quite helpful to say about consultation before matters are set in stone. I also think that she understands that various education bodies take these issues very seriously.
 We have had a useful debate. These are probing amendments, and I am sure that we shall return to the issue in due course, not only on Report and in another place, but in further debates down the line as the months roll by. I thank the Minister for her response. It was not 100 per cent. satisfactory—I would never say that—but it went a good way towards persuading us that she understands the nature of the problems and will consider them carefully. On that basis, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 20 ordered to stand part of the Bill.

Clause 21 - Transfer of leave stamps

Question proposed, That the clause stand part of the Bill.

Neil Gerrard: The clause extends the provision in the 1999 Act for charging for the transfer of an indefinite leave stamp from an old passport to a new one to include the transfer of limited leave stamps. I can perhaps understand the logic of charging the administrative costs of doing that, although in many cases it is not necessary. The fact that an indefinite leave stamp or a limited leave stamp is in a passport that has expired does not invalidate the permission to stay, whether the leave is limited or indefinite. However, many people want to have the stamp in their currently valid passport and may have problems, particularly in trying to get an airline to carry them, if they do not have a stamp in their currently valid passport. That would apply in particular to someone who had limited leave of entry.
 I would be concerned if we embarked on a regime under which substantial fees were charged simply for transferring stamps from old to new passports—fees that were well above the administrative costs of doing 
 so—even if it was believed that charging was justified in the first place. I hope that the Minister can give us some reassurance that we will not be in the business of charging more than it costs to carry out the straightforward administrative process of moving a stamp from an old passport to a new one.

Beverley Hughes: I can assure my hon. Friend that clause 21 is not affected by clause 20. Fees for applications to transfer leave stamps will be set under Treasury rules and will cover only the full administrative costs. I can also assure him that this is a technical clause in the sense that it will ensure that leave stamps include any new forms of stamps, stickers and other attachments. We are working to new vignettes for residence permits and so on, and the definition of stamps will include some of the new technology that we are using. I hope that that reassures my hon. Friend.
 Question put and agreed to. 
 Clause 21 ordered to stand part of the Bill. 
 Clauses 22 to 25 ordered to stand part of the Bill.

Schedule 4 - Repeals

Amendment made: No. 130, in 
schedule 4, page 39, line 7, at end insert— 
 'Section 94(4)(a) to (j).'. 
 —[Beverley Hughes.]
 Schedule 4, as amended, agreed to. 
 Clauses 26 to 28 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at twenty-eight minutes past Four o'clock till Tuesday 27 January at ten minutes past Nine o'clock.